How the pardon system treats the presumption of innocence

Is it okay to punish a criminal for the same crime twice? The Conservative government thinks so. Recently, the Supreme Court of Canada disagreed, ruling that the government’s attempt to retroactively impose tougher parole eligibility rules would violate offenders’ charter rights.

But what about punishing someone for crimes that may not have happened? Would it be okay to judge a person based on allegations that could not be proven in court?

I have a client whose application for a pardon (incidentally, it’s now called a “record suspension”) was refused based on subsequent charges — all of which were dismissed or withdrawn. The arrest happened more than a decade ago — which means he’s fulfilled the period of good conduct as it applies to the application for a pardon.

Unfortunately, my client — let’s call him John — can’t get a pardon because he was not convicted of those crimes. Since we are supposedly innocent until found guilty, it’s hard to understand that decision.

In the interest of fairness, I must point out that there is a case precedent which allows the Parole Board to ignore the presumption of innocence when someone is applying for a pardon. It was upheld in federal court long before the Tories made changes to the pardon system and so many other aspects of criminal justice.

In the case of Conille vs. Canada (2003) the Parole Board refused an application for a pardon because the applicant was the prime suspect in an ongoing murder investigation.

The decision was challenged and Canada’s highest court determined that the Parole Board did not err in interpreting the Criminal Records Act, s. 4(a) concerning the five-year period and the concept of ‘good conduct’. The court decided the Parole Board was justified in refusing the application because the presumption of innocence has no application in the context of an application for a pardon.

But surely there’s a difference between a collection of very old not guilty verdicts and being the prime suspect in an open murder investigation.

I’m curious to know why the right of an offender applying for parole to not be punished twice for the same crime is sacrosanct — but the right of someone applying for a pardon to be considered innocent until found guilty is not.

Like almost all the people I’ve worked with, John wants a pardon so he can get a better job. But with these old charges he will not be able to, because the Board was not convinced he met the ‘good conduct’ criteria.

Apparently, those ten-year-old not guilty verdicts show a disregard for the requirements of Canadian law because they happened after his last conviction took place. But what if he had another conviction after those 13? In that case, the argument wouldn’t hold up. With just one more arrest his record would be perfectly clean since the last time he was convicted of a criminal offence.

Besides, should it matter how many times a defendant is found not guilty, or when? And if so, what is the threshold to make an innocent man guilty? This does not feel like the same thing as an ongoing murder investigation. In the latter case there is a very compelling reason to keep the suspect’s criminal record active.

If you’ve ever looked for work with a criminal record, you know that not being able to get a pardon is additional punishment. If you disagree, consider talking to John — who is just trying to take care of his family by getting on with his life and getting decent work.

Tell John that an ongoing murder investigation is the same thing as a ten-year-old withdrawn charge. Explain that ‘not guilty’ means a little bit guilty, and that being guilty on all counts (rather than just some) makes you a better candidate for a pardon.

Tell John that a person who is eligible for a pardon based on the rule of law can still have his or her application refused if it would bring the administration of justice into disrepute — an aspect of the new pardon legislation that surely needs to be clarified.

With luck, the Supreme Court will find time to examine the pardons section of the Conservative government’s crime agenda. I’m curious to know why the right of an offender applying for parole to not be punished twice for the same crime is sacrosanct — but the right of someone applying for a pardon to be considered innocent until found guilty is not.

Of course, the two situations aren’t really the same. Parole can pose a very real risk to society; it’s a risk that society is willing to accept.

Granting a pardon, on the other hand, carries no risk at all.

Michael Ashby is an entrepreneur and writer. He is co-founder and communications director of the National Pardon Centre. He holds a Masters Degree in Intellectual History from the University of London in England and a BA from Concordia University in Montreal.

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